Opinion
NO. 09-12-00286-CR
07-11-2012
IN RE DOUGLAS ALAN BURDEN
Original Proceeding
MEMORANDUM OPINION
Relator Douglas Alan Burden filed a petition for writ of mandamus, in which he seeks to compel the trial court to rule on his motion for post-conviction DNA testing of weapons involved in Burden's underlying conviction for aggravated assault. Burden attached as an exhibit a copy of his motion for post-conviction DNA testing, and the certificate of service on the motion indicates that Burden served it upon the trial court clerk and the U.S. District Clerk for the Eastern District of Texas on May 10, 2012.
Mandamus will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). A court may abuse its discretion by failing to execute a ministerial task, such as refusing to conduct a hearing or rule on a properly pending motion. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, a court has a reasonable time to perform such a duty. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). A relator seeking mandamus relief must demonstrate that he has brought the motion to the trial judge's attention, and that the trial judge then failed or refused to rule within a reasonable time. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). In addition, a relator seeking mandamus relief must support every statement of fact in the petition by citation to competent evidence included in the appendix or record. Tex. R. App. P. 52.3(g); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).
Burden has not demonstrated that he brought the motion to the trial court's attention and requested a ruling from the trial judge. See Chavez, 62 S.W.3d at 228 (Clerk's knowledge cannot be imputed to the judge.). Therefore, Burden has not demonstrated that he is entitled to mandamus relief from this Court. See State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Accordingly, we deny relief on the petition for writ of mandamus.
PETITION DENIED.
PER CURIAM Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.